Goldmann, Sullivan and Burton. The opinion of the court was delivered by Burton, J.s.c. (temporarily assigned).
In this action the court, sitting without a jury, rendered a judgment in behalf of the plaintiffs and against two of the defendants. On appeal the defendants urge (1) the trial court erred in receiving in evidence photostatic copies of checks in violation of the best evidence rule, (2) failure to prove the signature of the drawer of said checks, (3) lack of proof of an indebtedness owed to plaintiff, (4) failure of delivery of the notes so as to make them binding.
The plaintiffs, Carol MacBurney Storm and Clara Hildreth, as executrices under the last will and testament of Ada B. Storm, deceased, sued to recover judgment for $10,783.87, alleging in the first count of their complaint that said sum was the balance due on a loan of $14,300 to Lauritz Hansen, and in a second count that it was the balance due on three notes executed and delivered to decedent by defendants Otto Hansen and Herbert W. Moore as collateral security for the said loan to Lauritz H. Hansen.
The defendants admitted due execution of the notes, but in their affirmative defenses and counterclaim alleged that Mrs. Storm lent $12,300 to Otto Hansen and Herbert W. Moore on notes pursuant to a usurious agreement, and claimed repayment totalling $1,516.13. In the pretrial order, Lauritz Hansen was permitted to interpose as a further defense that the monies which he had received from Mrs. Storm was as the agent of Otto Hansen and Herbert W. Moore.
The court held that the plaintiffs had sustained their claim of advances to Lauritz H. Hansen and Otto Hansen, but only to the extent of $12,000, with credited repayments of $3,516.13, or a balance due of $8,483.87. The judgment is against Lauritz H. Hansen on the loan and against Otto Hansen on the notes. No judgment was rendered against defendant Herbert W. Moore, who was not served with process and is presently not a party to this appeal.
At the trial, over an objection by counsel for the defendants on the ground that insufficient foundation had been
laid therefor, the court received in evidence photostatic copies of checks in support of the allegation that the deceased advanced sums of money to the defendant Lauritz H. Hansen. These checks, one for $3,000 and another for $9,000, purportedly showed the maker to have been Ada B. Storm and the payee Lauritz H. Hansen. As a basis for the receipt of the photostats Robert P. Weil, a New York attorney, whose firm represented the executrices of the estate of Ada B. Storm, attempted to account for the failure to produce the original checks. He testified that he had turned over the originals to one Osborne, a handwriting expert in Montclair, that he had not received them back and could not find them in his office.
Photostatic copies of the checks are, at best, secondary evidence. The rule in New Jersey is that in order to prove the contents of a writing no other than the original is admissible, with certain exceptions. In Biehler v. Great American Indemnity Co. , 127 N.J.L. 114 (Sup. Ct. 1941), speaking for the court, Justice Case stated:
"The theory on which evidence of a secondary grade is admitted is that the production of the primary evidence is out of the party's power. As a general rule, a party is expected to show that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest and which were accessible to him."
The earliest exception to the rule was concerned with a failure to produce after notice to produce was given, which does not apply here. Seward v. Vandergrift , 3 N.J.L. 922 [Reprint 480] (Sup. Ct. 1812). Another exception occurs when the original is beyond the process of the court. Roll v. Everett , 73 N.J. Eq. 697 (E. & A. 1908). Here, apparently, the checks were in Montclair, New Jersey. Another exception, recognized by our courts, obtains when the secondary evidence is offered in proof of a collateral issue. Rathbun v. Brancatella , 93 N.J.L. 222 (E. & A. 1919).
Here it is clear that the plaintiffs failed to lay a proper foundation for the admission into evidence of the ...